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516 Cards in this Set

  • Front
  • Back
cs modification retro

1. cs modification may be retro active to date of filing.

2. if based on job loss, must be retro later of date of service of osc or date of unemployment.

3. discretionary to order repayment
fc 3653
family support
unallocated support is in compliance wiht guideline

family support must be higher than guideline.

goal is tax deductibility.
fc 4066
reimburse of uninsured med cost

provide itemised request w/in 30 days
1. provide proof of payment and docs to pay directly to provider
2. reimbursement due within 30 days
3. pay now; dispute later;
fc 4063
child support beyond 18

1. child unmarried
2. over 18 but under 19
3. not self supporting
4. full time high school until 12th grade.

can continue supporting at any age by agreement
fc 3901(a)
child support obligation over 18
Stip divesting family court of jurisdcition for cs is void.
irmo lambe & meehan
stip terminating cs juris
adult child support

guideline is appropriate even with adult child support. Disabled aduld can seek cs.
irmo drake
adult child support
health insurance coverage with cs

ATROS to prevent cancelling insurance
obligor shall maintain health insurance for kids if
> available at no or reasonable cost
>presumed reasonable if through work
>privately if available at no or reasonable cost
fc 3751
child health insurance coverage
child health insur enrollment

a) employer/insurer may not deny enrollment for child born out of wedlock, not claimed as a dependent, not residing with parent, not residing in insurer's service area.

b) employer/insurer must allow enrollment outside regular period, or with presentation of court order.

b) (3) shall not disenroll unless family helath insurance eliminated for all employees, court order has dended, or child is enrolled elsewhere.

c) must provide info and ID cards to custodial parent, let CP submit claims, make payments to non-covered parent.
fc 3751.5
child healthcare enrollment
Mental intention to make this state your home
domicile
Subject matter jurisdiction for disso

one party resident
1) state for 6 mos.
2) county for 3 months
divorce subject matter jurisdiction
fc 2320
full faith and credit;

must have:
1) notice;
2) opportunity to be heard;
limitation to subject matter jurisdiction
residency
1. visa and immigration ruled do not control civil residence results
2. national entrance ruled do not preclude access to courts
3. 'dual intention' acceptable

due process - applies to all parties citizens/ non-citizens;
irmo dick
Status Disso

1. status disso cannot be denied if jurisdictional requirements met.

2. refusal of disso punitive
3. no fault in action
there is a stron public policy in ca of right to a divorce
irmo gray
foreign divorce of parties domiciled in state

divorce obtained in another state shall be void if both parties were domiciled in this state at time of filing;
fc 2091
foreign divorce of parties domiciled in state
When community property is used to increase the value of a separate real property asset, the community acquires a pro-tanto interest in the property.
Nelson rule (Moore-Marsden)
It is unrealistic to suppose that one spouse would voluntarily infuse community funds into the other spouse’s separate property without an expectation of reimbursement.
Wolfe
If the improvements did not enhance the value of the property, then the community is limited to reimbursement of the funds spent, without participating in any enhancement in equity. However, if the improvement did enhance the value of the property, the community is entitled to a pro tanto interest in the property based upon the cost of the improvement.
Bono
Payment of taxes, maintenance or insurance are not considered contributions to equity and therefore not included in calculating the community’s pro tanto interest.
Moore-Marsden
Community is liable for the debts of either party incurred during the marriage with exceptions such as if debt was not for the benefit of the community.
Fc 910
cp obligation
Husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. Confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.
Fc 721 (b)
fiduciary relationship
Parties have a fiduciary duty to one another in the management of property. This duty is applicable to the management of the spouse’s separate property as well as community property
fc721 (b)
fiduciary duty in management and control of cp
Simply making the investments in joint names is not sufficient to transmute the characterization of the invested funds.
Starkman, Balcof – joint names only not transmutation
Changing character as part of estate planning is sufficient to transmute the characterization of property.
Holtman – transmutation in estate planning
If one spouse secures an advantage from an interspousal transaction,"", the statutory presumption is triggered, and it is the burden of the advantaged spouse to overcome the presumption of undue influence mandating that the transaction be set aside.
Fc 852 - presumption of undue influence
For a transmutation to take place, there must be
1. a separate writing signed by the party who is adversely affected
2. expressly states that party’s intent to transmute the character of property to transmuter’s detriment.
MacDonald, Matthews, Delany – Transmutation
A spouse may not sell, convey, or encumber community personal property used as the family dwelling, or the furniture, furnishings, or fittings of the home, or the clothing or wearing apparel of the other spouse or minor children which is community personal property, without the written consent of the other spouse.
Fc 1100 – breach of fiduciary duty
Bona fide purchasers take the property free of any unknown rights.
Brooks & Robinson - Bona fide purchasers
Conditinoal order may be appropriate under certan circumstances and is not per se, coersive. Coditional order that if a spouse moves, custody will go to the other spouse.
LaMusga – Conditional order
Temporary Restraining Order prohibiting move away from state with children pending further order of the court.
Brown and Yana – TRO from move away
Outlines the procedural rights of the non-moving parent in a move-away case, including the right to obtain an evaluation of the effects of the proposed move on the children.

Identify “meaningful mediation” as one of the rights of the non-moving parent.
Seagondollar and Mcginnis – prodecural outline move away
Permits the court to appoint minor’s counsel. If the court determines that it would be in the best interest of the minor child, court may appoint private counsel to represent the interest of the child in a custody or visitation proceeding.
Fc 3150(a) – minor’s counsel
Where parents have a working shared parenting relationship, court approaches move-away on a de novo basis, looking only at the best interest of the children (“BIC.”)
Burgess – shared parenting moveaway
If CP has sole custody, NCP would have the burden to make a preliminary showing that the move would be detrimental to the children in order to obtain an evidentiary hearing to determine the “best interest of the child” (BIC.)
La Musga – detriment showing in move away
An 80% time share amounted to de facto sole physical custody.
Lasich – de facto sole physical custody
Modification of custody, assuming there is a sole physical custody arrangement, requires proof of a change of circumstances provided that there is a clear, affirmative indication in the order or judgment that the custody is intended to be final.
COC if
1. sole physical custody
2. final order/judgment indication
Montenegro, Birnbaum, Lucio – COC on final order/judgment
If the custody order is not final or no order at all, the court must apply the best interest of the children test without regard to any change in circumstances in modifying the order.
Montenegro, Lucio – BIC determination first if no final custody order/judgment
addresses the issues of ordering a parent to allow a non-parent visitation time when the parent objects to visitation. The parent wins unless the third party seeking visitation establishes that visitation is in the best interest of the child.
troxel
there is a rebuttable presumption affecting the burden of proof that the visitation of grandparent is not in the best interest of a minor child if the child’s parents agree that the grandparent should not be granted visitation.
fc 3103(d)
grandparent visitation
Presumption of paternity
Fc 7611
Fc 7611 is applicable to same-sex parerents as it is to opposite sex couples. A child may have two natural mothers. “Two Parent” limitation.
Elisa B
A man who took on the role of father could be found to be the legal father despite the lack of a genetic connection.
Nicolas H
A biological bond, standing alone is insufficient to establish parentage in the face
established parental relationships.

There would be statutory protection for the sperm donor for parties that pursue artificial insemination through a medical facility.

A biological tie, in and of itself, is not always sufficient to establish legal parentage, particularly where there are other candidates for parental roles.
Jesusa V.
In California, it is possible for same sex couples to adopt children and for a same sex partner to adopt the biological child of her partner.

Options for same sex couples
1. Adoption
2. Registered Domestic Partners
3. Marriage during the window of “Marriage Cases” up to adoption of “Proposition 8.”
Sharon S
same sex couple adoption
Fc 2451
Although case management may affect the discovery process and possible sanctions for failure to comply with discovery requests, a case management plan does not void, set-aside, delay, defer or otherwise suspend or alter a party’s obligations to respond to discovery requests absent specific stipulation regarding same.
Fc 2451
discovery in case management
Community interest is comprised of the principal portion of the asset acquired during the marriage. Interest of the parties in deferred compensation are computed on the basis of the “time rule.”
Lehman
Time rule applicable to deferred compensation
State may only modify the child support order of another state if:
a. the modifying state has personal jurisdiction, and
b. neither the parties nor the children presently live in the forum state.
Full faith and credit for child support orders act
California court may modify an out of state child support order if
a. neither the child nor either of the parties continues to reside in the issuing state;
b. the party seeking modification is a nonresident, and
c. the party not seeking modification lives within the jurisdiction of the state.
UIFSA
Provides that in modification proceedings, the law of the forum state shall be applied with a few exceptions.
Full faith and credit and UIFSA
Where housing is provided by a third party, its value may be considered as income. However, using the value of free housing as income for guideline support purposes is generally limited to free housing provided as a part of a parent’s employment compensation.
Stewart
Free home from living in a fully paid house may be considered a “special circumstance” opening the door for an upward deviation form the child support guidelines so that children are able to share with father’s standard of living.
Berger
Where a person has assets that are not invested in a manner to generate a reasonable income, the court may attribute a reasonable rate of return to those assets and include the resulting figure in income. Burden of proof is on the party seeking modification
Bardzik
Imputation of income – reasonable rate of return
Where one parent enjoys a high standard of living, based in part upon accumulated wealth rather than current income, the court may consider the party’s standard of living in setting child support so that the children may share in the payor’s lifestyle.
Extraordinary circumstances for deviating from guideline - DeGuigne
Property acquired during a marriage in joint tenancy is community property at the time of dissolution.
Title presumption
Rebuts title presumptions
1. deed or instrument
2. recital that intent to change character
Transmutation
there must be a reimbursement for separate property invested into a community asset. The party shall be reimbursed for the party’s contributions to the acquisition of the property to the extent the party traces the contributions to a separate property source. No interest accrues and reimbursement cannot exceed the value of the property acquired.
fc 2640
reimbursement
If there was an agreement that house is community property, then separate funds invested by each spouse in house gets to share pro rata in the appreciation of the house.
Lucas
UCCJA
In order to modify the decree of another sate, the court must find that
1. state’s original jurisdiction was not proper
2. that first state no longer has jurisdiction, or
3. first state declined to exercise jurisdiction, or
4. there is some emergency requiring state 2 to modify the order of state 1 – danger has to be specific and immediate.

UCCJA
The policy behind uccja is to
1. stop jurisdictional fighting re custody orders and
2. to promote cooperation between the states
so that the child can be assured a stable environment
UCCJA
modification of out of state order
jurisdiction will lie in the state where the child has resided for the 6 months preceding the filing of the action.
home state test jurisdiction
State has jurisdiction where child has substantial connection to the state.
Substantial connection test
There is a home state preference in custody modification.
Federal Parental Kidnapping Prevention Act PKPA
Set aside must be within 6 months from entry of judgment based on surprise, mistake, or excusable neglect.
Ccp 473
set aside based on mistake
Stevenot
Set aside judgment based on extrinsic fraud under equity. Policy for finality of judgment. Difficult to obtain set aside based on extrinsic fraud. Factors court would look at is:
1. representation by a lawyer of his own choosing
2. substantial difference in understanding between the parties
3. any party prevented from exercising rights from going to court.

Laches is a defense.
Equittable set aside based on extrinsic fraud
California law gives each parent very clear and definite rights concerning their natural children, regardless of marriage bonds or the parents behavior towards one another.
Court looks at best interest of the child. Party that frustrates consistent and continous visitation less likely to get custody.
Custody
When a separate business increases in value during marriage a portion of the increase must be attributable to the community. That portion which reflects the skill, effort, and labor of the spouse whose business it was prior to marriage. This is measured using 2 methods:

1. Pereira
2. Van Camp
Business Valuation
States that a fair rate of return is applied to the separate business, based on the nature of the business, over the length of years of the marriage and remaining appreciation in value is attributable to the community. This method generally applied in businesses which are labor intensive;
Pereira
Holds that community should be given a fair return for its services to the business and the remainder of the appreciation is separate property. Basically, the community is valued at the cost of obtaining and paying a manager for the business. The balance constitutes separate property. This method is more appropriate for capital intensive business.
Van Camp
Court not mandated to apply Pereira or Van Camp. Court must apply the rules in such a way as to achieve substantial justice between the parties. This formula is a compromise of Pereira and Van Camp based upon a pro rata division of the results obtained by applying both Pereira and Van Camp.
Todd and Beam
Once the community interest is determined, the community expenditures are deducted there from in order to reach the net community interest.
Family expense presumption
Intention to separate and live permanently apart. The test is objective and the partie’s conduct will generally determine whether there has in fact been a separation. Parties must intend that the marriage is truly over. Parties should not hold themselves out as a couple.
Separation
Baragry
imperato
Efforts after the date of separation constitutes separate property.
Separate Property
If there was a separation, wife’s separate property effects after separation would be apportioned per imperato. Imperato suggests as a formula that community be entitled to interest based on the productivity of the community property invested and that the parties separate property effects receive the balance. (reverse Pereira).
Imperato – Business Valuation after Separation
Court looks at the intent of the employer in granting the particular benefit to the employee.
a. if the benefit is for services already performed, then they will usually be considered to be community property if earned during the marriage.

b. If they relate to either 1)lack of work at a time after separation or 2) for services to be rendered after separation, then they are treated as separate property of the earning spouse.
Stock Options (Hup)
characterization
Not been held to be a marital property in California.
Professional Degree
Education Reimbursement -

The community shall be reimbursed for community contributions to “education or training” of a party that “substantially enhances” the earning capacity of the party.


Reimburse the community for expenses it incurred for the education of one or both of the spouses, plus interest at the legal rate.
1. There is a rebuttable presumption that the community has already benefited from the degree if it was obtained 10 years prior to separation.
2. There is a rebuttable presumption that the community has not benefited if education was acquired less than 10 years before the separation of the parties therefore allows reimbursement of expenses incurred for education plus interest to the community.
Fc2641
Sullivan Bill
Educational cost reimbursement
Time rule is used to determine the cp portion of pension. Rule holds that you create a formula with the years of service as the denominator and years employed during the marriage as the numerator which results in the community fraction of the pension.
Pension Benefits
irmo Brown
pension rollover -
nonemployee spouse may elect to take an immediate distribution of his or her cp share of vested retirement benefits even if the employee-spouse elects not to retire at the earlilest retirement age.

employee spouse must start making payments to nonemployee spouse directly or buy her out.
irmo Gillmore
under California law, term life insurance is not considered to be marital property since it has no
a. inherent
b. ascertainable value
term life policy
characterization
Must be filed within one year of commission of offense. Elements are
1. valid order
2. knowledge of the order
3. ability to pay
4. willful failure to pay
Contempt
There is a presumption that the person ordered to pay child support had the ability to pay when the order was entered, and this showing is stronger the shorter the time period between the order and the contempt citation.
presumption of ability to pay cs
Motion to dismiss contempt for failure to prove elements.
EC 1118
Estoppel to collect child support
If cp does not tell ncp where the children is.
Estoppel to collect child support
All property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.
Fc 760
general cp presumption
Joint title can be a roadblock to tracing. It is not possible to trace through the roadblock of joint title for characterization purposes. The law simply does not permit a mere tracing to overcome the strong presumption of joint title.
Road block to tracing
Support is either deductible or non-deductible. To be deductible to payor and includible for payee must :
1. instrument – court order or judgment
2. no joint tax return
3. paid in cash or equivalent
4. paid for benefit of recipient and no Epstein credit
5. not designated “non-deductible”
6. not living in same household post disso
7. not labeled cs
8. not reduced no kid related event
9. not reduced on time associated with kid related event
10. it has to end at recipient’s death
Domestic Relations Tax Reforms Act (DRTRA) – IRC 71
No gain or loss recognized on transfer to a former spouse if “incident to a divorce”;
1. conclusive presumption as incident to a divorce if transfer occurs within 1 year of marriage ceasing;
2. rebuttable presumption if transfer occurs after 1 year but within 6 years;
Irc 1041 division
Spousal support can be reduced up to $15k per year without trigerring recomputation; “Excess support” is added to payor’s income to be recaptured. Payee gets to amend his or her return and take it out from her taxable income. Excess support is recomputed from starting from year three after judgment working backwards.
Recomputation IRC71(F)
Dual representation is proper if there is a waiver.
Dual Representation (Klemm v. Superior Court)
A loan incurred during marriage for the education or training of a party shall not be included among the liabilities of the community and for the purpose of division shall be assigned for payment by the party.
fc 2641 educational loans
Parties may contracts re
1. rights and obligations of each party in any property
2. right to buy, sell, use , transfer, exchange, manage and control property
3. disposition of property upon separation, marital dissolution, death, or occurrence or non occurnce of an event
4. making of a will, trust, or other arrangement to carry out the provisions of the agreement.
5. ownership rights in and disposition of the death benefit from a life insurance policy.
6. choice of law
7. other matter not violating public policy.
Fc 1612
subject matter of
premarital agreements
premaritals not enforceable if either
1. not voluntary
2. unconscionable and (all)
a. no full disclosue
b. no waiver of full disclosure
c. no knowledge
fc1615
enfroceability of premaritals
presumption premaritals “not voluntary” unless
1. represented by counsel or advised to seek counsel
2. 7 days between presentment and signing
3. informed consent
fc 1615(b)
presumption premaritals “not voluntary”
Uniform Premarital Agreement Act (UPAA)
· No child support limitation
· Spousal support not covered
Uniform Premarital Agreement Act (UPAA)
Spousal support prenup waivers not per se invalid. If limit ss in prenup, must state reason under fc 4320 factors. Policy is to award support sufficient amount of time to allow supported spouse to be self supporting; 19th century “anachronistic” view should not govern 21st century.
IRMO Pendleton and Fireman
spousal support factors:
1. Earning capacity to maintain msol;
2. Contribution to education
3. Ability to pay
4. needs based on msol
5. assets, obligations, and sp
6. duration of marriage
7. employability
8. age and health
9. domestic violence
10. tax consequences
Fc4320
spousal support factors
Step Parent Visitation
· Court may grant step parent visitation if found to be in the best interest of the child.
· Any order must not conflict with birth parent visitation.
· There has to be a finding.
fc3101(a)
Step Parent Visitation
Jurisdiction ceases unless at least one party remains in the child’s home state and there is some kind of unclean hands or other “bad” act. CC5152;5151(5) home state;
State Jurisdiction Cease
There may be two states that “possess jurisdiction” but only one state that is authorized to exercise jurisdiction under the act. One of the purpose of both statutes is to resolve all questions in favor of the state which can best decide the case in the interest of the child. CC5152(b).
FPKPA and UCCJA
· States that the state that is the home state will have preference where two states are competing, unless one of the state asserts jurisdiction under the doctrine of “continuing jurisdiction.”
· Strong presumption in favor of the decree state so long as one of the parents continues to be a resident of that state
Continuing Jurisdiction under FPKPA
May include a substantial period of time when no one lives in the decree state if that person returns to the decree state before the litigation begins.
Continuing Jurisdiction under UCCJA
Convenience of having the case in that state;
Forum non convenience CC 5156
Child support order or enforcement requires personal jurisdiction over the obligor parent.
Child Support Jurisdiction
Kulko, Shaffer.
The Courts have clearly held that goodwill does exist as a professional practice or business which is founded on a person’s skill and reputation.
Goodwill
Mueller case.
The Courts have held that a wife is entitled to be recompensed for her contribution to the increase in the goodwill portion of a husband’s professional practice, just as she would be entitled to be recompensed for the increase in the value of stock, during marriage in a family business.
Recompensation of goodwill.
IRMO Golden.
Absent a reservation of jurisdiction by the divorce court, community property which is not mentioned in the pleadings or divided by the judgment is subject to future litigation between the parties as tenants in common.
Omitted Assets
The parties that reach a final and complete settlement of all property rights, which by its terms can be modified only by written consent of the parties, then the court may not partition the omitted asset without violating the constitutional prohibition against impairment of contracts.
Partition of Omitted assets
IRMO Henn.
· Payments from one spouse to the other to purchase a community asset can be deductible as spousal support to the payor and taxable income to the payee.
· Use of promissory note to equalize the division of community property no longer results in a taxable sale under IRC 1041 and will not increase the basis of the acquired property.
DRTRA – Deductibility of Spousal Support
Court may enter judgment in a case where the parties “stipulate in writing” or “orally before the court” to a settlement of all or of part of a case.
Oral Stipulation before the court
Deposition record is not sufficient to constitute an oral stipulation announced before the court as required by 664.6. ccp 664.6 refers to stipulations reached in the course of judicially supervised settlement conferences. Datronic case.
Ccp 664.6
Spousal support waiver contained in a stipulation could be set aside as void against public policy.
Spousal Support Waiver
Weisz case.
Spouse may pursue collection of support arrearage in every manner available to a judgment creditor collecting any judgment. Judgment or order made or entered under this code may be enforced by the court by execution, the appointment of a receiver, or contempt, or by any other order as the court in its discretion determines from time to time to be necessary.
Fc 290
enforcement of spousal support
Award pension to employee spouse
Value the plan, award it to the employee spouse with offsetting assets awarded to the other. Phillipson case.

Divide pension in kind
Divide the plan in kind where the plan permits or terminate the plan where permissible, and then roll over the portion awarded to the non-employee spouse into an IRA

Distribution of future payments
· Provide for distribution to non-employee spouse of future payments based upon an apportionment of the proceeds between the community interest and the employee spouse’s separate interest. IRMO Brown.
· Spouse is entitled to receive the payments as of the earliest date the employee could retire at a rate then applicable. Gilmore case.
Division of Pension
The non-employee’s community property rights in the pension benefits survive the death of the employee spouse.
Pension Survivor Benefits
Taylor case – public pension; Allison – private pension.
· Determining a ration for length of employment between the date of marriage and date of separation to the total length of employment. Freiberg case.
· Ratio is applied in the actuarial valuation of a defined benefit plan. Stephenson.
Time rule
Pension
· Public plans are not subject to ERISA rules relating to funding standards, reporting and disclosure requirements, vesting standards and minimum participation rules;
· Not subject to REA rules relating to choice of benefits, provision for survivor benefits, designation of surviving beneficiaries, need for QDRO.
Public Pension Plans
· REA requires a pre-retirement survivor annuity to the spouse of the participant
· REA requires specific joinder of the spouse in choice of benefit options.
· Specific written waiver of the spouse in the right to receive the pre-retirement or joint and survivor-benefits.
· There must be included in the judgment all of the factors required to be included in a QDRO.
Private Pension Plan
Bifurcation of status does not divest the nonemployee spouse of her REA rights. Allison case
Effect of bifurcation on non-joinder
1. Clearly specify the benefits to be paid or the manner to determine the benefits.
2. State the number of payments or period of payment.
3. Cannot provide for benefits not provided under the plan.
4. Cannot order payment of benefits greater than actuarial value of the participant’s benefits.
5. Identify the plan and the parties.
6. amount or % (up to 100%);
QDRO requirements to be valid
An appeal from a judgment should be permitted only when a case is determined on all issues. Policy is that the disposition of appellate issues on a piecemeal basis is costly, inefficient, and oppressive.
One final judgment rule
Court authorized appeal from a bifurcated judgment granting a dissolution.
Irmo fink
Authorizes an award of fees and costs to the extent that they are in an amount which is reasonably necessary to prosecute or defend the action.
Award may be made by noticed motion, osc, or orally in court.
Authorizes an award of fees and costs when one party is in financial need for such an award and there is an ability to pay such an award by the other party.
Attorney’s fees Fc 2030
Authorizes an award under the ff circumstances:
1. The need of each party to have adequate resources to represent himself/herself.
2. The extent to which the conduct of each party and his or her attorney furthers or frustrates the policy of the law which is a) to promote settlement and b) reduce cost of litigation by encouraging cooperation.
Attorney’s fees as sanctions
fc 271
1. Award against a party or attorney reasonable expenses and attorney’s fees caused by the bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.
2. An order imposing sanctions must be in writing and specify in detail the conduct or circumsntances justifying the order.
Attorneys’ fees and cost
CCP 128.5
Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child.
Policy for continuing contact with parents Fc 3020 (b)
Witness disqualified if
1. uncapable of being understood
2. uncapable of understanding duties of a witness
Disqualification of Witness (Ev. Code 701)
Court’s control over means of interrogation of witness;

Court has general authority to establish protocols for testimony by any witness.
Ev. C. 765
Court held F in contempt of court for filing proceedings to try to defeat juvenile court jurisdiction.
William T
Family court order does not preempt juvenile court order.
In re Anne P
Misuse of juvenile court proceedings may justify order reversing juvenile court.
In re Brendan P.
Court has authority to take any reasonable steps necessary to protect child pending investigation. Fc 3027(a)

Court may order child welfare agency investigation. Fc 3027(b)

Court may set OSC for sanctions against parent who knowingly makes false abuse allegations to compensate accused parent. Fc 3027.1
fc 3027
Child Sexual Abuse Allegations
Disso Jurisdiction requirement:

One party is a resident
1. state for 6 months
2. county for 3 months
prior to filing petition
subject matter jurisdiction
fc 2320
ca has to give 'full faith and credit' to other state order as long as there was
1. notice
2. opportunity to be heard
in other state proceeding
limitation to subject matter jurisdiction
divisible divorce;
can divide issues in ca;
in rem subject matter jurisdiction
mental intention to make this your home;

burden on party asserting residency;
domicile
fed indian law says 'no trust money shall be liable for any debt/claim.' court says source may be exempt but ncp liable for cs on receipt of funds;
irmo purnel
indian tribal custom and policy says no ss to non-members; ct held fed statute does not apply if policy inconsistent with state law;

ca has public policy to support spouses so ct. not give tribal custom 'full force and effect.'
irmo jacobsen
filing a response is 'waiver' of subj matter juris.

rule 1230 requires motion to quasch to be filed within 30 days of service of summons or waiver of objection to subject matter jurisdiction;
Zaragoza
in a disso, proper court is where 'respondent' resided for 3 months prior to filing petition;

for Nullity/ legal sep - proper court is where either party lived when petition was filed

to enforce cs obligation, proper coourt is county where child resides;

venue can be affirmatively invoked by motion to transfer venue.

analysis
1. residency requirements
2. forum non-convenience
Venue
ccp 395
Ct. may transfer any disso, nullity or legal separation to 'either party's' county of residence if neither party still lives in county rendering order

ct. make make necessary temporary/ emergency orders first;
ccp 397
ccp 397.5
ct. may exercise personal jurisdiction on any basis not inconsistent with us and state constitution. requires:
1. minimum contacts
2. so as not to offend traditional notions of fair play and substantial justice;
ccp 410.10 personal jurisdiction
international shoe
neff
minimum contacts - must purposely avail himself of ca laws;

agreement to send child to ca is not sufficient minimum contacts because no financial benefit, no business conducted, no tort commited;
kulko
quality education for child is availing of benefits of state sufficient for minimum contacts;

acquiescence and payment of tuition intentionally caused effect in ca;

tort req. for min contact lower than family law - standard is different;
kessler
binding arbitration to decide on venue is not forbidden in family law but must have confirmation by the court;

visits do not count for minimum contacts - judd case
modlin
must be 'present' contact and not 10 years ago for minimum contacts - tarvin case; past contact irrelevant.

Burden of proof: first, petitioner must establish minimum contact, then respondent to show unreasonableness;
muckle
get personal jurisdiction if one of the ff:

1. domicile
2. consented
3. minimum contacts
4. personal 'presence' in state
(burnham case - personally served in ca)

consider limited exceptions such as UCCJEA;
personal jurisdiction
ct gets personal jurisdction of respondent present in state;
Burnham
personal service in ca of osc not sufficient for personal jurisdiction because osc different form service of summons;

fc 2012: not a general appearance to oppose temporary order when motion to quasch is pending;
irmo fitzgerald
guideline cs applies to wellfare reimbursement;

if guideline cs is hgiher than wellfare reimbursement, excess goes to custodial parent;
martinez
cs tetroactivity

1. cs retro to filing petition;

2. if petition served past 90 days, retro to date of service;
perry
fc 4009
presumed father
1. long duration
2. encourage to believe
3. allowed lapse bio dad

presumed father - not limited to males;
irmo pedregon
stip to binding arbitration on cs is void agaisnt public policy;
you cannot limit court jurisdiction to cs;
bereznak
court always has juris to modify child support;

non modifiable stips 'void' as against public policy;
irmo alter
cs gross income defined

income from whatever source derived except.
1. cs
2. 'need based' public assistance program - ex. wellfare and afdc;
fc 4058
cs income defined
cs calculation require use of actual tax status. ex. 'mfs:
fc 4059
irmo carlton
termination of parental rights terminates cs obligation;

juveniled court cases;
gonzales
termination of parental rights
windfalls/ lottery winning are 'income' for cs.

policy
1. wellfare case
2. gamblings is a means to make money.
lemon
voluntary debt assumption is not basis for discretionary finding of reduced net for cs;

wages reduced by debt repayment;
irmo kirk
cs - voluntary debt assumption
1. deferred salary is an 'investment' in biz and constructively received (not paying yourself a salary.)

2. other assets could have been used.

3. 'voluntary expenditures' irrelevant in cs.
irmo berger
cs - deferred salary
cs income
appropriate period to use is most recent 12 months;
irmo riddle
cs income period
loan application is 'substantial evidence' of cs income.
irmo chakko
1. non monetary benefit ae counted as cs income.

2. employee benefits such as meals.
stewart
cs - non monetary benefit
guideline cs req ss exclusion from gross of ss obligee;

except add-on calc;

to consider ss would be 'de facto' modification of ss;
corman
cs income does not include income that is subject to 'repayment.' (debt).

student loans are not considered cs income because subject to 'repayment.'
irmo rocha
ssi excluded as need based public assistance;

policy - cs should be support from private sources;
elsenheimer
fc 4058
life insurance is a 'capital asset' even if not included/ excluded as cs income.
irmo schepper
fc 4058
impute earnings capacity
1. ability
2. willingness
3. opportunity
to earn;
cs & ss same requirements;
irmo regnery
cannot force someone to work past 65 yrs old for ss purposes;

cannot impute income to someone 65 years old or older;
irmo reynolds
party seeking modification has the burden to prove
1. ability/ no ability
2. opportunity
to earn.
irmo bardzik
limit to ec imputation:

exception to ec imputation
1. 'best interest of children' to have less money and more parenting;
2. 'good faith'
3. BIC is to have both parents nurturing child;
irmo everett, mosley, hinman II
reasonable work regimen - limit to ec;

earning capacity measured by 'reasonable work regimen:'
1. avail jobs
2. usual hrs
3. usual work conditions

do not have to kill yourself;
irmo simpson
support income
1. actual income must include o/t and bonuses;
2. discretion to sub a difference prospective grosss income;
3. divide annual net disposable by 12;
irmo andrade
fc 4060
no new spouse income - you cannot consider new spouse income except:

'extaordinary cases'
irmo loh
irmo wood
fc 4057.5
1. statute permits parents with small children to 'choose' to stay home;

2. single parent of very young child has 'zero' ec;
garcia
burden shift

after imputing parent shows:
1. ability, and
2. opportunity

'burden' then shifts to ec parent to refute employability;
irmo labass and munsee
ec imputation self employed

1. opportunity to generate income from application of skills and training;
2. ability;
3. willingness;
irmo cohn
1. incarcerated people not exempt from imputation of ec;
2. but still 'no opportunity' to earn;
vargas
improper to consider support for adult children in detemining cs;
irmo serna
cs or fs. ct. may require parent to attend:
1. job training program
2. vocational rehab program
3. work program
fc 3558
'employment benefit' of to add for support income but must be in 'taxable column.'
irmo schulze
can impute ec on:
1. capital - ror on capital
2. labor - ror on labor
irmo dacumos
fc 4058 - labor
cs income
1. can consider ror on inheritance
2. c share in f sol; consider f sol; (increased disposable income).
castle
1. stock options - income when 'excercised.'
2. ror should be imputed on wealth. c should share in f sol.
3. c's 'needs' tested on 'current sol' and not 'msol.'
irmo cherton
cs 'add on' list exclusive; includes:

1. child care
2. uninsured health care;

optioonal
3. education
4. travel for visitation
irmo de guigne
fc 4062
'add on' cs formula apportionment:

1. half each parent, or
2. if requested by either parent, calc apport. based on their net disposable income pro rata;

ss adjustment - deduct from payor but add to payee's income;

cs adjustment - deduct from payor but no add to payee's income;
irmo de guigne
fc. 4061
unrealized residence 'appreciation' not fc 4058 cs income;
irmo henry
1. impute ror on underperforming assets;
2. cannot impute as extra income rental value of housing benefit not related to employment (fully paid house.)
3. 'add ons' for optional activities to maintain f current sol;
irmo schlafly
home equity
1. cannot impute ror on equity of primary residence;
2. unless 'special circumstances'justify exercise of discretion to make non-guideline award;
irmo williams
fc 4057(b)
pi settlement
fc 4058 income not include pi settlement bec compensation for loss;
irmo heiner
annuity pi payments
unallocated 'annuity' monthlyincome from pi settlement not cs income;
irmo rothrock
stock sales
stock sales is 'capital exchange' and not income;
can set ror on proceeds;
irmo pearlstein
depreciation - in calculating cs income, cannot consider 'depreciation.'
asfaw
1. new mate assets irrelevant so cannot impute new mate sol;
2. tax return presumptively correct;
3. lifestyle is evidence of last resort;
irmo loh
1.cash rent is includible as income;
2. discretion to ignore pass-thru;
smith
exception to 'no new mate income':
'extraordinary cases' where income exclusion would lead to 'extreme and severe hardship' to any supported child;
fc 4057.5
1. can consider new mate income to calculate 'taxes' deductions;
2. discovery limited to w-2 and 1099 only (basic);
campbell
1. not automatic to assign timeshare of day care to custodial parents;
2. da silva factors
a. transportation
b. emergency contact
c. tuition
3. discretion to assign time share;
irmo whealon
irmo katzberg
'zero' timeshare with higher earner ncp absent evidence of ncp %

except:
ncp is moving party;
cp is defaulter;
fc 4055(b)(6)
discretionary hardships deducted from cs income:
1. extraordinary health exp.;
2. uninsured catastrophic losses;
3. living exp of other natural/adopted child living with parent;

capped to amoutn cs ordered pro rata # children;
t/ ct must specify facts and duration of hardships;
fc 4070 to 4072
low income payor adjustment - if income is less than $1,000 per month, maximum reduction in support is % reduction in support for each $1 below $1,000; can make any % adjustment up to the max;
fc 4055(b)(7)
1,000;

can make any % adjustment up to the max;
fc 4055(b)(7)
payment rec from fed ncp retirement, or disability:
1. recipient ncp must notify custodial parent:
2. payor credited with benefits or benefit included in gdl calc;
3. if payee doesnt applly, payor is credited monthly with amount cp should have received;
fc 4504
rebutting guidelline
guideline presumed correct unless:
1. parties stip to diff amount;
2. deferred sale of house;
3. party not contributing to kids needs per custodial time;
4. extraordinarily high earner where guideline exceeds needs;
5. unjust due to special circumstances;
fc 4057(b)
non gdl stip less than guideline must declare:
1. fully informed of cs rights
2. no coercion
3. agreement is BIC
4. kids needs are met by the order;
5. no COC to modify below guideline order;
fc 4065
modification of non guideline cs stipulation:
1. below guideline stip - no COC needed;
2. above guideline stip - req. COC because assumes BIC;
irmo laudeman
child support agency must sign stip for cs if providing services;

if payee receiving/ applied for aid/ not agree, csa may not sign below guideline stipulation;
fc 4065(c)
1.if income in dispute for cs, must make least favorable assumption against 'payor' and calculate guideline from that.
2. discovery limited to info from which to make unfavorable assumptions;
johnson
1.must have evid of income before calculating guideline;
2. must calculate guideline before rebutting;
3. stipulation to rebut guideline;
irmo hubner II
1. Creating a 'trust' is not appropriate. Need to give cs to custodial parent.
2. if cp cannot be trusted, time to make a change in custody;
irmo chandler
1. for ss, msol is the reference point;
2. for cs, current sol is the reference pooint, but 'needs' must be considered.
3. stock options are income for support when excercised;
irmo kerr
1. fc 4057 special circumstances (former rule 1274) relates to financial circumstances. Obligation of every parent, adoptive or natural, to support child, no matter fher behavior;
2. if guideline is more than cost of keeping child in juvenile hall, excess goes to juvenile delinquent;
guy c.
if your going to have ncp pay non-guideline support, ct. must:
1. state reason, and;
2. must be in BIC;
irmo gigliotti
need for 'travel trust' to maintain contac with ncp is 'special circumstance' justifying deviation from guideline;
wilson
reimbursement of uninsured med cost;
provide itemized request within 30 days:
1. provide proof of payment and docs to pay direct to provider;
2. reimbursement due within 30 days;
3. pay now, dispute later;
fc 4063
family support-
unallocated support is in compliance with guideline;
family support must be higher than guideline;
goal is 'tax deductibility.'
fc 4066
Pension rights, whether or not vested, represented a property interest.
irmo brown
Under a gillmore motion, pension payments are retroactive to the date of filing of the motion;
irmo cornejo
community assets that are not divided in a disso may be partitioned in a separate civil action;

property which is not mentioned in the pleadings as cp is left unadjudicated by decree of divorce, and is subject to future litigation, the parties being tenants in common meanwhile;

in the context of pension;
henn
pension
characterization
1. cp interest includes retiremetn benefits 'as enhanced.'
2. employer motive not relevant;
irmo lehman
pension
stream of income can change in amount but not character

dangers of non-mod ss is it can be modified later;
irmo davis
stenquist I - in pay status, disability payments in excess over longevity pension payments is separate property;

webb/samuels - in disability status, payments to retirement age is separate property, then cp;

pace - payments before ret age, and not yet eligible to retire are sp; payments after are cp;
apportioning disability pay
1. disability pay that replaces the cp portion of benefits that would have been received had husband not 'elected' disability is cp.

2. the major reason behind the payments was to provide retirement support, not compensation for injury;

3. unfair to permit husband to elect between disability pay and thereby deprive W of cp interest in what was mostly longevity retirement pay;
irmo stenquist
disability benefits (payments) are sp even if for retirement unless
1. pre date of separation premiums paid
2. with intent to provide retirement income;
irmo elfmont
soonest pension plan cas be required to pay alternate participant:

earlier of when
1. participant entitled to payment; or
2. maturity('gillmore') date, but not younger than 50;
1986 irc changes to rea
1. plan may pay AP's at any time;
2. must be in written plan, but
3. plan may amend, especially if owner is admistrator/participant/spouse;
4. AP can request it or move court for order;
REA regulations re QDROS
1. erisa preempts state cp law;
2. must narrowly construe qdro exception;
3. qdro exception not present here;
Boggs
erisa preempts state cp law and beneficiary governs;

plan documents control;
egelhoff
erisa requirement that benefits must be paid according to plan documents tgrumps disso waiver;

disso judgment is not same as qdro;
kennedy
1. surviving spouse per qdro can specify benefits available per plan to current spouse.

2. even to complete exclusion of actual current spouse;

3. if former mate dies, actual current spouse succeeds;
REA QDRO regs
separate life annuity vs. two separate benefits for AP(pre and post P's death)

Pre-retirement:QPSA qualified preretirement survivor annuity(at least 50%)

post retirement: qjsa (qualified joint and survivor annuity) at least 50%;

both require written spousal waiver;

surviving spouse gets both

may waive only one - or condition on P selection (eg kids)
QDRO Survivor Benefits
ct prohibits conditional trasnmutation;

conditional transmutation may constitute a materially false representation to the irs;

cp, including any income or appreciation, that is distributed or withdrawn from a trust by revocation, power of withdrawal, or otherwise, remains community property unless there is a valid transmutation of the property at the time of distribution or withdrawal;
irmo lund
valuing closely held corp.

ct. must determine the investment value of the stock for purposes of division on disso, which was different from the market value because there was essentially no market for them;

three approaches used
1. capitalization of earnings approach;
2. dividend paying capacity;
3. book value or net asset value;
Hewitson
separate property efforts after separation - reverse apportionment;

reverse apportionment doctrin req ct.. determine what portion of the postseparation increase in business value is due to the community investment and what part is due to the operating spouse's postseparation efforts;

then, it must allocate the increase between the community and separate estates as appropriate;

the asset itself remains cp until the court divides it in the judgment;
irmo aufmuth
imperato and barnet - reverse apportionment;

greene - dos as dov for pereira type business;

watts - community entitled to reasonable ror from dos;
reverse apportionment cases
title presumption -evidence code 662
owner of legal title presumed owner of beneficial title; burden of proof is clear and convincing;

undue influence presumption - presumption of undue influence in transfers between spouse; burden of proof is preponderance;

ct. held that 'presumption of undue influence' trumped 'presumption of title.'
Haines
no reasonable person will disagree with; 80-85%;
clear and convincing standard
standard of proof to prove 'transmutation'
clear and convincing evidence
standard of proof for party seeeking termination of parental rights. in re r.c.
clear and convincing
standard of proof in title presumption cases (ev c. 662)without competing undue influence presumption;
clear and convincing
standard of proof in waiver of property rights cases. irmo fell.
clear and convincing
standard of proof when one party seeks to stop another from asserting a right. irmo brinkman
clear and convincing
standard of proof when a party seeks an award under fc 1101(h) of 100% of an asset tranferred or undisclosed in violation of the other spouse's fiduciary duty. irmo rossi;
clear and convincing
copyright on a literary work produced during the marriage is a divisible cp as the underlying artistic creation.
irmo worth
1. quantified
2. valued
3. divided
'property'
separate property of a married person includes all property owned by the person before marriage.
fc770(a)(1)
property owned before marrieage or acquired during marriage by gift, will, or inheritance is separate property.
cal constitution art 1, section 21
transfers of title to property during marriage from one spouse's sp to both spouses as joint tenants in connection with property refinances constitutes 'acquisitions' so as to render the property community in character
irmo kahan
disability benefit policy is sp because:
1. right to benefits acquired prior to marriage;
2. source of funds for acquisition is sp;

time of acquisition case;
irmo rossin
1. transmutation
2. comingling
3. contribution of cp funds
4. contribution of cp effort
4 ways to make sp to cp
1. social security benefits - irmo cohen;
2. old age and survivor benefits - irmo hillerman;
exceptions to time of acquisition rule
spouses will be deemed to have made a 'complete and final break' on the date on which one spouse
1. intended not to continue a marital relatioonship and (subjective)
2. indicated that intent by his or her conduct; (objective)

intent and conduct must be simultaneous under Norviel case;
establishing date of separation
irmo hardin
cant be separated if your under the same roof;

living apart physicallyis an indispensable threshold requirement to separation, whether or not it is sufficient, by itself, to establish separation;
irmo norviel
facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration.
evid. code 622
separate property presumption
a sp of a married person includes:
1. property owned before marriage;
2. all property acquired by the person after marriage by gift, bequest, devise, or descent.
3. the rents, issues, and profits of the property described in this section;

b. a married person may, without the consent of the spouse, convey the person's separate property;
fc 770
a. earnings and accum of a spouse and the minor children living with , or in the custody of, the spouse, while living separate and apart from the other spouse, are the sp of the spouse;

b. earnings and accum of an unemancipated minor child related to a contract of a type in section 6750 shall remain the sole legal property of the minor child.
fc 771
separate property presumption
after an entry of judgment of legal separation of the parties, the earnings or accum of each party are the sp of the party acquiring the earnings and accum;
fc 772
gen cp presumption
except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is cp'

invoking presumptions
1. property(real or personal)
2. acquired
3. by married person
4. during marriage, and
5. while domiciled in ca (if not then quasi cp)
fc 760
burden on spouse asserting sp character to overcome cp character;
see case
standard of proof to overcome cp presumption is 'preponderance of the evidence.'
irmo ettegagh
ev code 662 trumps marital presumptions;


the act of taking title to property in the name of one spouse during marriage with the consent of the other spouse effectively removes that property from the general community property presumption;
brooks & robinson
title presumption can be overcome only by evidence of an agreement or understanding between the parties that the title reflected in the deed is not what the parties intended.

burden of proof; clear and convincing;
brooks & robinson
expenses of the family are paid from community rather than separate funds; the community earnings are cheargeable wiht these expenses;
family expense presumption
in re neilson
property acquired
1. during marriage
2. in joint form
presumed to be cp

rebutted by
1. statement in deed that it is sp
2. written agreement that property is sp;
fc 2581
joint title presumption
allows reimbursement for
1. contributions to cp
2. trace contribution to
3. sp source

no intereest, adjustment for change of value, and cannot exceed net value of property;

unless:
written waiver of reimbursement right;
fc 2640(b)
right to reimbursement
limitation to reimbursemtn

1. transmutation in writing
2. written waiver
fc 2640(c)
limitation to reimbursement right
all pre 1984 acquisitions during marriage in joint title is cp;

no tracing allowed;

sp is lost unless oral/written agreement or understanding
irmo lucas
1. disso only
2. acquired during marriage
3. joint form
4. presumed cp

pro-lucas

retro to all cases not final on 1/1/84;
fc 2581
title presumption
rebuttal of fc2581 title presumption;

1. written agreement
2. contrary statement
3. deed or title
4. retro to all cases no final 1/1/84;
5 corp c 15025(e)
fc 2581
rebutting title presumption
fc 2581 joint title presumption not apply when one party dies bec fl ct loses jurisdiction and goes to probate;

fc 2040(b) 'blair' warning:
fl summonses must give notice that if either party dies before property division:

1. jintly held property passses to survivor;
2. cp presumption wont control;
3. litigants must see attorney to change this effect;
irmo blair
title presumption applies to joint property if spouse dies after bifurcation;

one spouse has no vested interest in being survivor bec subject to condition precedent of death of other spouse;

reservation of jurisdiction over remaining issues gives fl court jurisdiction;
irmo hilke
title presumption fc 2580 and 2581 cannot be retroactively applied;
irmo buol
fc 2640 reimbursement amount on a refinanced sp during marriage satisfied by owner 'estimate of value;'

No 'tracing' necessary;
irmo stoll
unconstitutional to apply fc 2640 reimbursement to pre 1/1/84 acquisitions;
irmo heikes
waiver of fc 2640 reimbursement

waiver of fc 2640 reimbursement rights must be expressed;

burden of proof on spouse asserting the waiver by 'clear and convincing' evidence;
irmo carpenter
family expense presumptions

'process of elimination' replaces detailed records;
irmo cochran
fc 2640 inclusion list
1. direct contributions sp to cp;
2. sp may increase equity;

fc 2640 exclusion list
1. sp do not increase cp equity even when needed to keep asset;
irmo nicholson and sparks
H and W sp contribution used to purchase house #1 then refi and purchase house #2;

fc 2640 reimbursement allowed to be pass-thru tracing allowed to subsequent properties;

fc 2640 survives refi and flows to subsequetn properties;

fc 2640 pro-rata apportionment goes to subsequent properties;
irmo walrath
categories of interspousal fiduciary duty issues
1. premarital agreements
2. general presumption of a 'confidential relationship' beg. dom;
3. management and control of cp;
4. interspousal transactions;
5. post separation fiduciary duties;
categories of interspousal fiduciary duty issues
fiduciary relationship

legal obligation impsed upon one person in dealing with another

occures when one manages anothers property or affairs;

continues so long as fiduciary has control of property;

can occur without 'confidence and trust.'
fiduciary relationship
confidential relationship

exist when one reposes trust and confidence in another and the other voluntarily accepts

can be 'de jure' or 'de facto.'

exists only so long as 'trust & conofidence' are reposed;
confidential relationship
pre 1992

confidential relationship - reposing trust and confidence by one person to another cognizant of this fact;

fiduciary relationship - control by a person over the property of antoher;

fiduciary relationship continues after termination of confidential relationship as long as control property of another;
vai
fiduciary relationship
1. duty of full disclosure
2. resumed to have undue influence
bonds
fiduciary and confidential relationships - person whom trust and confidence is reposed and who accepts the trust and confidence is in a superior position to exert 'unique infludence' infludence over the dependent part;
barbara a.
arises when either party to a fiduciary or confidential relationship 'benefits' from the transaction with the other.
presumption of undue influence
public policy of state - foster and promote institution of marriage;

structure of society depends on institution of marriage;
haines
breach of fiduciary duty 'constitutes constructive fraud';

remedy includes restitution;

no 'intent to defraud' needed; if intent to defraud, then actual fraud;
breach of fiduciary duty
resitution serves 2 purposes:

1. make wronged party whole;
2. wrong doer stipped of unjust enrichment;
restitution
prima facia case to invoke undue influence presumption
1. confidential relationship;
2. resurrect or opt out of the confidential relationship;
3. benefitted party participated in transaction;
4. type of advantage;
5. transaction arise out of the relationship;
undue influence presumption
(prima facia showing needed)
1. in the use by one shome a confidence is reposed by another, or who hold a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over hiim.

2. in taking an unfair advantage of another's weakness of mind; or,

3. in taking a grossly oppressive and unfair advantage of another's necessities or distress;
definitions of undue influence
cc 1575
premarital agreement - fiduciary duty;

party challenging the agreement bears the burden of demanstrating that the agreement was not entered voluntarily.
bonds
'de facto' confidential or fiduciary relationship, if proven, creates a fiduciary duty;
fiduciary duty - premarital agreements (prior to 02)
opting out
parties may elect to deal with each other at arms length which terminates any fiduciary obligation;

1. evid code 622
2. waiver of fiduciary relationship
conolly
opting out of fiduciary agreement
premarital agreements
waiver of fiduciary relationship
1. intentional relinquishment of a known right
2. after knowledge of the facts;

sop is clear and convincing;
waiver of fiduciary relationship
presumptive confidential relationship exists at marriage and presumptively ceases at separation/commencement of litigation;

de jure - confidential relationship arises upon marriage;

defining characteristics
1. duty of loyalty - corp c 16404
2. duty of disclosure - corp c 16403

applies prospectively after 1/1/03 per walker;
fc 721(b)
general presumption
'confidential relationship' when spouse marry;
1. without demand - any information converning partships businesss & affairs reasonably required for the proper exercise of the partner's rights and duties;

2. on demand - any other info re partnership business & affairs;
duty of disclosure
corp c. 16403
duty of loyalty

a. loyalty
1. account to partnership and hold as trustee; partnership opportunity
2. refrain from dealing with the partnership in adverse manner;
3. refrain from competing with partnership before disso;

b. care
1. refrain from engagin in grossly negligent or reckless conduct, intentional misconduct, or knowing violation of law;
duty of loyalty
corp c. 16404
either spouse has the management and control fo the cp as the spouse has of sp;

arises out of fiduciary relationshiop;

duty does not end at dos;
continues until date of distribution of cp and qasi cp;
duty of management and control
fc 1100(a)
spouse may opt out of managment and control duty but must conform with corp code 16103;
opting out management and control
suoa sponte duty of disclosure pursuant to fc 721(b) and corp code 16403

cannot be applied to conduct priot to effective date of 1/1/03;
walker
fc 1101(g) and (h)
restitution
1. dollar for dollar reimbursement
2. discretionary prejudgment interest under cc 3288;
3. pro tanto interest in the appreciation of an asset;

purpose:
1. make the wronged party whole;
2. strip wrongdoer of unjust enrichment;
remedies for breach of duty
de jure fiduciary duty fc 721(a)

parties may waive interspousal fiduciary duty;

interspousal fiduciary duty ends at separation;
confidential relationship between spouses
fc 1100
a. either spouse has the management and control of cp and sp;

b. spouse cannot give gift or dispose less than fair reasonable value without written consent of other sposue;

c. spouse may not sell or encumber sp without written consent;

d. operating spouse has the management and control of business interest. managing spouse may act alone but must give notice if disposition of subst all biz property;

e. fiduciary duty until distribution of cp; duty to full disclosure;
management and control
fc 1100
reduction in adversarial nature and cost;

achieved by fostering full disclosure & cooperative discovery;
public policy full disclosure
fc 2100(b)
in order to promote public policy, a full and accurate disclosureof all assets and liability in whic one or both parties have or may have an interest in the early stages regardless of the characterization as cp or sp, together with disclosure of income and expenses;
full disclosure
fc 2100(c)
party has continuing duty to immediately, fully, and accurately update and augment the disclosure when there is material changes so parties have full and complete knowledge at settlement or trial;
timeline
fc 2100(c)
ca has strong policy to ensure
1. division of cp
2. fair and sufficient cs and ss;

policy can only be implemented wit full disclosure of cp, quasi cp, & sp, income and expenses;

and decisions freely and knowingly made;
ca policy for disclosure
fc 2120
1. identity
2. character
3. valuation
4. income
5. expenses
material facts and information
spouses are subject to the same rights and duties of nonmarital business partners;

imposes duty of highest good faith and fair dealing;

1. trustee and accounting
2. full disclosure
3. access to books
721(b)
corp codes 16403 and 16404
disclosure
applies pre and post dos

1. without demand - info concerning partnership business and affairs for the proper exercise of partners rights and duties;

2. on demand - all other info concering partnership biz and affairs;
corp code
16403
disclosure
fiduciary duties

1. duty of loyalty
a. accounting and trustee
b. refrain from dealing adverse manner;
c. refrain from competing

2. duty of care - not be grossly negligent
corp code 16404
fiduciary duty
1. fc 2102 - suo sponte/ business opportunity;

2. fc 2104 - pdd
3. fc 1100(e) - upon request;
4. fc 2105 - fdd
5. fc 2100 and 2102 - augment pdd and fdd;
6. mfi re business assets and income (feldman)
a. balance sheet
b. income statement
c. cash flow
d. depreciation sched
e. tax basis
f. purchase and sale of assets
disclosure statutes
suo sponte
from dos to distribution pursuant to fc721(b) duties:

1. assets and debts
2. investment opportunity
3. business management;
4. income and expenses - mfi
fc 2102
disclosure
1. sufficient particularity
a. identity
b. percentage ownership
c. income and exp. dec.
fc 2104 p
pdd disclosure
mfi - material facts and information
1. characterizaton
2. valuation
3. identity
4. income
5. expenses

can be waived by parties; due at time of settlement or 45 days prior to trial whicever comes first;
fc 2105
fdd disclosure
represent
1. pdd completed and exchanged
2. I&E exchnaged
3. pdd augmented
4. waiver knowing, intelligent, and voluntary;
5. waiver not limit disclousre obligations;
fc 2105 waiver
enforcement
1. motion to compel further responses;
2. motion for order preventing evidence;
3. sanctions available to deter conduct;
enforcement non disclosure;
sanctions;
fc 2107
feldman points:
1. no actual injury needed for sanctions;
2. having mfi creates duty of candor;
3. fact that business entity owns assets does not excuse spouse from disclosure duty;
4. material fact for disclosure purposes is one relevant to tracing or characterization, identity, valuation, income, and expenses;
5. fact that requesting party already has the info doe not relieve the other spouse from disclosure obligations;
irmo feldman
enforcement of fiduciary duty
1. transmutation
2. comingling
3. contribution of cp funds
4. contribution of cp efforts
4 ways cp can acquire interest in sp
an interspousal transaction or agreement that works a change in the character of the property (Benson);

analysis:
1. valid form
2. free from fraud - 'undue influence.'
3. waiver of right to reimbursement fc 2640

no consideration needed for transmutation;
transmutaton
fc 852
not need to be in writing;

irmo weaver
transmutation
before 1/1/85
express declaration of change in ownership required

subject to a 'special' statute of frauds (Benson).
transmutation
after 1/1/85
cp to sp
sp to cp
sp to sp
types of transmutation
gifts between spouse that is
1. personal item;
2. not substantial;
exception to fc 852 transmutation
1. written express declaration
2. consented to by spouse adversely affected
validity of transmutation
fc 852
writing to effect a transmutation - must include 'language which expressly states that the characterization or ownership fo the property is being changed.

in Macdonald, w signature in bank consent form did not include such language;

deeds are 'safe harbors'

gramar -
a. transitive verbs change - 'change and 'give/gift.'
b. intransitive verbs do not change - 'confirm' or 'transfer.'
irmo Macdonald
extrinsic evidence is inadmissible on the 'express declaration issue.'

'intent' is irrelevant;
proof of transmutation
transmutation

word 'transfer' in instrument is not 'change' in character;
irmo barneson
deeds are 'safe harbors.' for satisfying fc 852(a) requirements;
estate of bibb
estate planning documents must have express intention to change character of the asset for transmutation;
irmo starkman
language of transmutation

valid transmutation cannot be 'limited in purpose or otherwise rendered conditional or temporary.'

valid transmutation can be undone only by express agreement that independently satisfies fc 852(a);

fc 2640 reimbursement still applicable unless knowing, intelligent, and voluntarily waived;
irmo holtemann
3 requirements to transmutation
1. writing
2. accepted
3. express declaration to change character of property;
irmo benson
1. wrongful spouse made use of the confidence
2. for the purpose of gaining an unreasonable advantage over the mate;
presumption of undue influence
saslow case
elements of 'undue influence' presumption

1. confidential fiduciary relationship - presumed when married;
2. parties resurrect or opt out of the confidential relationship -
a. reposing trust and confidence
b. voluntarily accepts
3. transaction arise out of the relationship
4. party benefitted must have participated in the transaction must be active participation;
5, unfair advantage;
transmutation must have been free of fraud;
1. freely & voluntary
2. full knowledge
3. complete understanding legal effect
4. fair and just
5. adequate consideration
elements to overcome 'undue influence' presumption
fc 2640 right of reimbursement survives transmutation unless written waiver;

must 'trace' in order to get reimbursement;
waiver of fc 2640 reimbursement rights;
reimbursements
1. sp to sp - reimbursement unless there is transmutation or waiver of reimbursement, then no reimbursement rights;
2. sp to cp - reimbursement right survives
fc 2640(c) effective 1/1/05 reimbursement on transmutation
sp funds were available at the time of acquisition;

show by total recapitulation of community inccome and community exp during the entire marriage only if
1. records not available through no fault of claimant;
2. tracing at the time of acquisition;

burden on sp claimant;
see v. see
1. direct tracing;
2. family expense tracing;
3. equitable apportionment tracing;
3 methods of tracing
1. adequate records:
2. to identify separate funds and community funds;
direct tracing
1. processof elimination
2. community income was exhausted by community expenses at the time the asset was acquired;
3. at a particular point in time, or over the entire length of the marriage;
4. over entire length of marriage (total marital recapitulation) disfavored;
family expense tracing
1. profits flowng from sp are sp
2. fl tracing is process of elimination
3. a form of family exp mehtod tracing;
equitable apportionment tracing
1. definable separate and community funds
2. comingling is a voluntary act;
'hard' tracing
1. not possible to keep adequate records
2. not known until long after separation;
'soft' tracing
1. sp funds where on hand when withdrawal made;
2. sp funds where knowingly and intentionally with drawn as part fo the acquisition in question
3. drawer intended to acquire a sp interest with those funds;
4. fiduciary/ community opportunity doctrine - disclosure;
'tracing' elements
testimony proves
2. sp funds where knowingly and intentionally with drawn as part fo the acquisition in question
3. drawer intended to acquire a sp interest with those funds;
testimony may be crucial for tracing;
1. property owned before marriage;
2. property acquired after marriage by gift, bequest, devise, or descent;
3. rents, issues, and profits of sp;
separate property
fc 770(a)
joint title
road block to tracing
consent by spouse to title being taken solely in name of the other spouse overcomes the presumption of community. lucas rules apply. clear and convincing evidence.
brooks & robinson
title presumption
funds deposited into a joint tenancy bank account were conclusively presumed to be community property absent a contrary writing;
joint deposit accounts
1. family expense presumption - community living expenses are first paid by community funds, prior to bein paid by sp funds;

2. separate for separate - no presumption that sp funds are used for separate purposes;

3. loan proceeds - lender intent doctrine;
presumptions related to expenditure of funds
1. breach of fiduciary duty is a 'constructive fraud.'
2. remedy for constructive fraud is restitution;
3. restitution serves 2 purspose:
a. make wronged party whole;
b. recovery from wrongdoer and prevent unjust enrichment;
equitable apportionment and reimbursement (moore-marsden)
discuss proper formula when commuity established right to a 'pro tanto' interest in sp asset.

cases do not discuss right of the community to reimbursement;
moore/marden cases
mortgage interest adn property taxes are not included in the moore/marsden formula;

there is a right of reimbursement to the cp for use of its funds to pay these and other carrying costs;
interest and property taxes - equitable apportionment
when appellate court decisions conflict, the court exercising inferior jurisdiction must make a choice. it does so by determining which is
1. better reasoned
2. most likely to do justice
auto equity
the community has a right of reimbursement when its funds are used to apy any sp obligation;
fc 1100(a) permits cp to be used for sp purposes
irmo walter - cp reimbursed mortgage and tax;

irmo lister

irmo frick - cp used to pay sp tax obligation;
reimbursement for payments of general sp debt with community funds
estate of turner - real property taxes

somps - taxes, incidental expenses and like

epstein - cp pay sp income taxes;

irmo frick - cp pay discharge sp premarital debt;

long line of cases say sp entitled to reimbursement for sp carrying cots.

split in juris

carrying cost are improper in a moore/marsden formula;
reimbursement for carrying costs on sp
provides for discretionary interst for 'equitable apportionment' and reimbursement;
civil code 3288
community is liable for spouse's sp debt;

community entitled to reimbursement for nonconsensual transfer of cp real property;
fc 910
creditor rights
irmo lister
civ code 1573
any breach of duty,which without an actually fraudulent inetn, where one gains an advantage;

vai v. bank of america
failure to disclose mfi which gained an advantage constitutes concealment of material facts and breach of fiduciary duty.

constructive fraud even if no intent to defraud;

breach of fiduciary duty is constructive fraud;
constructive fraud
use cp to improve sp is constructive fraud
wheeland
consent is a defense to constructive fraud

gift presumption
cc 3515
estate of la belle
dunn and wheeland
consent is irrelevant;

cp use for sp is reimburseable regardless of consent;
wolfe, allen, and bono
courts exercising inferior jurisdiction must accept the law declared by court of superior jurisdiction. it is not their function to attempt to overrule decisions of a higher court.
auto equity
spousal consent is an attempted transmutation; must comply with MacDonald.
spousal consent
rules of civil procedure apply in family law;
fc 210
crc 5.21
restitution

purpose
1. to make the wronged party whole
2. prevent unjust enrichment
remedy for constructive fraud
prejudgment interest is allowed
civ code 3287(a)
civ code 3288
baker .v pratt
interest as part of restitution
breach of fiduciary duty/constructive fraud
1. interest is discretionary
2. interest is needed to make party whole.
3. circumstances of the case dictate whether compound interest is appropriate;
4. compound interest is allowed when restitution is justified even if punitive damages are not;
compound interest
1. pro tanto interest in sp as alternative to interest,
2. in addition, dollar for dollar reimbursement plus interest
pro tanto interest
moore/marsden
award greater of
1. interest
2. pro tanto interest (moore/marsden)

actual fraud, can get
1. compounded interest or punis;
whichever is greater
fc 721(b)(3)
fc 1101(b)
right to full accounting
cp right to reimbursemetns from ff:
1. pay down principal of the mortgage;
2. improvements;
3. carrying costs, such as mortgage interest, property taxes and insurance;
4. pay for a business;
apportionment and reimbursement for cp to sp mortgage paydown, improvements, and carrying costs
calculating pro tanto

marsdent merely decided the correct formula;

sp was entitled to all pre-marriage appreciation;

uses the fair market value as of the dom as denominator in the formula;
moore and marsden
1. determine amount each party sp contrib
2. calc appreciation from purchase to date of conversion
3 calc % purchase price represented by each sp contrib and apply to appreciation;
4. add each party's sp contribution to his or her % appreciation to get each party's sp equity in residence;
h and w has sp interest in property then converted to cp during marriage;
irmo rico
moore requires cp interest be recognized whether sp interst acquired beefore or after mariage;
irmo banco
improvements are reimburseable

taxes not reimburseable bec not acquisition per moore;
irmo wolfe
moore marsden applies to improvements;
irmo allen
if no increae in value, the wronged party is limited to reimbursement;

bono is not a disso case but a probate case;

departs from moore/marsden in 3 ways:

1. sp includes post dom appreciation until improvement date; date of first cp contribution;
2. appreciation post dos and pre cp contribution all sp appreciation;
3. percentage contrib applied to appreciation from cp contrib to dos and not dot;
irmo bono
cannot use fair rental value of residence to offset claimed moore/marsden interest;
irmo nelson
a. contributions of acquisitions include down paymment, improvements, and principal; not include interest, maintenance, insurance, taxation;

b. reimbursement of sp for acquisition of cp but needs 'tracing.'

no reimbursment if written waiver or similar;

c. right of reimbursement on sp to sp acquisition unless:
1. transmutation
2. written waiver of reimbursement;

limitations
1. no interest
2. not exceed value of property;
fc 2640
no gift presumed for post separation payments on cp obligations (epstein credits);
epstein
reimbursement for one partys post separation 'exclusive use of a community asset' in absence of the using spouse's entitlement to epstein credits for paymnets on the asset;

reimburse community for that party's post-separation exclusive use of community asset (watts charges).
irmo watts
epstein credits are completely separate and distinguishable from watts charges;
jeffries
1. impermissible gift
2. breach of fiduciary duty
3. constructive fraud
4. remedy of restitution
a. cp make whole;
b. strip sp of unjust enrichment;
cp effort contribution to sp
(effect)
to achieve substantial justice
goal of applying equitable apportionment
once court determine community income through pereira or van camp, it deducts the community expenses from community income to determine the balance of cp;
beam
in order to be apportionable to the cp, theincrease in value during mariage has to be
1. reasonably related to thos community efforts
2. greater as a result of these efforts than would normally occur in similarly situated businesses.
restitution of contribution of effort
1. primary reason for increas in value of sp business during marriage was cp effort;
2. increase in value musst be greater as a result of these effrts than would normally occur in similarly situated businesses;
restitution of cp effort
1. cp labor did not increase value of sp business beyond reasonable ror;
2. cp labor is not primary reason for increas in value;
3. actual or imputed income equals or less than family living expenses paid by sp;
when apportionment is not available
'where the principal part of the large income was due to the personal character, energy, ability, and capacity.'
when use pereira
'chief contributing factor' in the realization of income and profits

1. capital investments
2. personal activity, ability, and capacity of the spouse;
berry
on the party asserting cp interest in sp business;
burden showing reasonable compensation
whether or not the community was fairly and adequately compensated for spouse's marital efforts;
reasonable compensation
separate property efforts after separation to maintain cp business or asset;

court to determine what portion of the postseparation increase in business value is due to
1. cp investment and
2. operating spouse's postseparation efforts;

then, it must allocate the increase between the cp and sp estates as appropriate;
reverse apportionment
imperato and barnett - reverse apportionment

greene - dos as dov for pereira type business

watts - community entitled to reasonable ror from dos;
cases involving reverse apportionment
spouse's ability to earn did not constittute a 'business' which would justify division as part of the community estate;
sullivan
if business has no market, the standard to value business is 'investment value.'

investment value - subjective standard because based on value to a particular 'individual.'

the primary distinguishing characteristic of investmetn vlaue is that it denotes value to a particulare owner or investor. pratt.
irmo cream
investment value
if an active market existed for the stock, 'market value' could be determined, but if none existed then its 'investment value' should be determined.
business valuation
in essence, the professional is buying out a 'silent partner.'
Mctiernan
1. difference between fmv and investment value
2. judicially determined 'intangible value' is being forced upon operating spouse and offset by tangible assets;

3. operating spouse is buying other spouse as 'silent partner';
3 principles in value goodwill
1. buying out silent partner
2. operating spouse will continue run the business
3. ct must consider the value of ongoing business to the 'operating spouse' when determining its value
brawman
future income
ct required not to divide any of operating spouse's future earnings which is sp;
limitation on valuation
1. operating spouse purchases 'excess earnings'
2. support order based on excess earnings;
problem with goodwill
two bites of the apple
double dip
1. fixed assets
2. a/r
3. goodwill to operating spouse as a going concern;
4. liabilities;
lopez
asset of a business
1. formula to value goodwill
2. all other assets must be valued
3. subtract liabilities;
valuation method
excess earnings method
1. normalize income; value fixeds assets and give reasonable ror;
2. determine reasonable compensation. if normalized income is greater than reasonable comp, this is excess earnings;
3. set a cap rate and divide excess earnings by the cap rate;
valuing goodwill of professional business
1. peers salary (garrity)
2. annual salary of a replacement partner (iredale)
determine reasonable compensation
1. motion
2. for good cause
3. cp or qcp
4. to avoid unreasonable market or investment risks
5. must file declaration;
fc 2108
pendente lite sale of asset
1. cannot sell, transfer, encumber sp without joinder of both spouse for 3 months;
2. family law proceeding;
fc 754
lis pendens
property must be described in moving paper to file 'lis pendens.'
gale
fc 2550
ct should redistribute cp if house is foreclosed prior to judgment;

once there has been substantial change in the nature of the cp due to the foreclosure, ct should either redistribute equally the residue of the property or alternatively, find a statutory exception;
irmo olson
ct divide out of state property in manner not change nature of interest held in property; if not, then
1. order other spouse execute conveyance, or
2. award other party money value of the interest;
fc 2660
out of state realty
1. ca - cp can be divided
2. fed - no division
miltary retirement plans
public policy permits partie sto enter into prenuptioal agreement as long as there is mutuality of bargaining power;
dawley
1.Requires that prenups be in writing;

2. requires full disclosure;
UPAA
Uniform Prenuptial Agreement Act
what was the primary basis of the lender in granting credit; if it was cp then proceeds is cp; if it was sp then proceeds is sp;

in determining if the proceeds secured by the loan is cp, the court will look to the intent of the lender;
lender intent doctrine
(Gudelj)
unconscionable when executed and not when entered;
prenuptial agreement
unconsionable
(iverson)
used where the business is labor intensive and places a fair rate of return on the business and allocated the remainder of the appreciation to cp;
pereira
van capm is used in a capital intensive siutation. after fairly compensating the community for its efforts, the remainder is held to be sp;
van camp
after 1-1-85, a transmutation can only occur if it is in writing, clearly expressing an intent to transmute the property;
transmutation
title to real property can only be rebutted by clear and conincing evidence;
evidence code 621
1. child support security deposit
2. cash security for unpaid support
3. wage assignemtn
4. sontempt
5. writ of execution
6. writ of attachment
7. child support DA
enforcement of support
1. suspension of license
2. tax intercept
3. greater discovery capabilities;
4. slow up to 6 mos to act;
child support DA
enforcement
concept there can only be one final judgment and operates to prohibit appears from partial judgments until the case is complete;
one final judgment rule
exception to one final judgment rule is family law ac;

in cases of bifurcation, court may certifu an issue for appeal and the court of appeals may then order its transfer for decision to avoid the perplexing problem of the one final judgment rule in family law cases;
appeal of bifurcated judgment
1. statement of decision
2. notice of appeal within 30 days if judgment is mailed
3. notice of appeal within 180 days if judgment is not mailed;
appeal
1. requires 'economic feasiblity' analysis;
2. best interest of the child (irmo duke);
3. other factors - continuing same school; continuing same relationships;
deferred sale of house
1. not live 2 years in last 5 years in the house;
2. no longer incident to a divorce under irc 1041;
tax consequences of deferred sale of house
justification for a deferred house sale was to provide a form of noncash child support;

deferred sale should terminate when cs terminate;
policy behind deferred sale of house;
1. notice in other state hearing
2. opportunity to be heard;
full faith credit
causation of a ca residents pregnancy and visits during courtship was not enough contacts with california to confer personal juris;
Bartlett
personal jurisdiction
NY resident did not have sufficent contact with ca to confer personal juris when only contact was sending children to ca to live with mom;
kulko
personal jurisdiction
juvy case supersede family court proceeding
price, william t, brendan p, anne p;
court cannot consider tax consequences fo the property division unless they are 'immediate and specific.'

either property must bhe sold as a result of disso or party must contemplate immediate sale, probably within 6 months of the order;
irmo davies
a party who receives as asset in a property division also receives teh tax basis in that asset;
IRC 1041
a corporation must produce corporate tax returns and otehr documents but need not produce payroll records for any other employee but the employed party;

court must balance any third party's right to privacy with requesting spouse's need for the documents and spouse's right to full disclosure of all info re cp;
schnabel
corporation docs discov
spouse entitled for credit for any payments he made on a community debts with his sp funds
irmo esptein
spouse entitled to credit for paymetns made to community debt in lieu of spousal support;
irmo garcia
spouse could be entitled to credit for both the house payments and reasonable rental value of house;
irmo jeffries
credit frv and pmts
court computed a fari return on the sp and awarded the increase over that amount to the community;

used if business is labor intensive; give community effort bigger share of appreciation;
pereira
equitable apportionment
court computes what would have been a fair salary for the separatizer during marriage as compensation for community efforts, and award the remainder of the increase in the investment to the separatizer;

used if business is capital intensive; court give majority of increase to sp;
irma van camp
equitable apportionment
court may relieve a spoouse from a judgment adjudicating support or division of property after the six month time under ccp 473 has run.

court must find that ground for relief
1. materially affected the original outcome;
2. moving party would materially benefit from relief
fc 2121
setting aside judgement
set aside judgment
1. within 6 months
2. proof of mistake , inadvertence, surprise, or excusable neglect;
ccp 473
motion to set aside judgment
breach of fiduciary duty
requires spouses act toward each other with the highest good faith and that this includes making full disclosure to each other of all community assets and debts;
fc 1100(e)
breach of fiduciary duty
a quitcalim deed given by wife tohusband while separated effected a valid transmutation of wife's interest in the house to husband;
irmo broderick
transmutation during separation
spouse has sufficient contaccts witgh california to justify pj over her under ca long arm jurisdiction;
personal jurisdiction
defense to lack of personal jurisdiction
motion to quash
court can take jurisdiction over the custody issue of the child without child being present here if it findds that ca is child's home state;

1. child must live in ca for 6 consecutive months;
2. child removed from ca by parent
3. child will continue to live in ca if gain custody

other state must give full faith and credit to an order pursuant to UCCJEA;
UCCJEA
property acquired in joint tenancy or other joint form during marriage is community effective 1-1-84;
fc 2581
party who contributes traceable sp funds to acquiring or improving a community residence is entitled to reimbursement to his sp for the amount of such contribution effective 1-1-84;
fc 2640
prior to 1-1-84, sp contributions to acquisitions of community asset were presumed to be gifts to the community, and absent proof of agreement to do so, the court would not order reimbursement;
irmo lucas
in general, if a loan taken during marriage is secured by community residence, the loan proceeds will be considered community, and wil not change the characterization fo the house.
mortgage
starting 1-1-84, special statute created a right of reimbursement for such improvements.
improvements
fc 2640
death would not by itself abete the action dividing the propertiy because although courte entered status only judgment, court reserved jurisdiction over property issues;
irmo hilke
cp presumption prevails over a presumption that is based on the form of title.
irmo allen
non-emcumbering spouse can move to set adie as an encumbrance on cp given without his consent;
droeger v friedman
sloan & ross
attorney who takes a security interest in a client's property must fully disclose the terms of the agreement because an attorney many not knowingly acquire an interest adverse to his client without the client's fully informed consent.

attorney must advise client in writing that he can seek independent counsel re encumbrance and security agreement;
hawk v. state bar
allows attorney in a family law matter to serve notice of a lien on cp on the other spoue who then has an opportunity to object to the lien.

funds must be for the purpose of hiring or paying the family law attorney, and the lien attaches only to the encumbering spouse's interest in the property.

full disclosure under hawk apply.
FLARPL
a rebuttable presumption arises that an attorney received confidential communications when he has worked on a case and then changed firms.
dill v. superior court
if an attorney is disqualified because he represented one one client before switching the opposing side, as a matter of law the entire firm is disqualified;
henriksen v. great american savings & loan
prohibits an attorney from conditioning privison of legal services on a clients willingness to have sex with him or by coercing or intimidating a client into having sex.

prohibits attorney from continuing to represent client with how he had sex if sex may prejudice or damage clients case.
B&P C 6106.9
prohibits sex with clients like B&P C 6106.9 unless the sex predates the attorney-client relationship;
CRPC 3-120
pi damages are cp if the cause of action resulting in the damage award arose during the marriage;
fc 780
pi damages
court must award community pi damages to the injured spouse, unless the interest of justice require a different award.
fc 2603
awarding pi damages
lump-sum worker's comp benefits received by a spouse after date of separation are the injured spouse's sp;
irmo McDonald
court may join any entity or person as a party to a family law action if that entity claims an interest inn any property that is subject to the court's jurisdiction;
joinder
retains a place in the chain of title that will be asssumed by any judgment in the action to shich it pertins, such a judgment will take its place in record title.
lis pendens
requires the written consent of both spouses in order to convey any interest in community real property.
fc 1102
consent to convey cp
post separation contirubtion may buy into the appreciation in the residence by virtue of their contriubtions to the acquisition, in a reverse Moore/Marsden application;
irmo Neal
if parties economic circumstances permitted it, court could defer the sale of the family home as child support on the theory that doing so minimized the impact on children who lived with the in-spouse;
Duke
deferred sale of home
court has authority to defer the sale of a home for the benefit of a disabled adult child for whom a support obligaton exists under fc 3910
fc 3800
deferred sale of home for disabled child
parties can agree 'confidential'

may assist in drafting stip agreement

cannot be counsel fo record

cannot decide issues if there is breakdown.

only general advise given; no specific advise;
mediation
1. can only represent one party
2. ethical obligation to represent interest of client
3. client meetings are confidential
4. counsel of record;
advocate
1.employee/ agent of conciliation court;
2. psychology background;
3. subject to local conciliation court rules;
concilation court counselor
court may assign tort liability in a dissolution to the tortfeasor spouse as his or her separate debt if the debt was no incurrred for the benefit of the community;
fc 1000
irmo stitt
the owner of the legal title to property is presumed to be the owner of full beneficial title.

presumption may be rebutted only by clear and convincing evidence;
ev code 662
title presumption
where one spouse has taken advantage of another in an interspousal transaction, a presumption of undue influence arises

Burden is on benefitted spouse by preponderance of the evidence (irmo matthews);
fc 721
presumption of undue influence
presumption of undue influence does not apply if ev c 662 is applied because of higher evidentiary standard of ev c 662
conflict
presumption of undue influence
v.
title presumption
facts 'recited' in written instrument are conclusively presumed to be true as between parties;

does not apply to recital of consideration;

effect: all contradictory facts are inadmissible;
ev c 622
presumption of truth in factual recitrals in a contract
when reaon of a rule ceases, so should the rule itself
civ c 3510
legal maxim
where reason is the same, the rule shoul be the same;
civ c 3511
legal maxim
gift or inheritance received during the marriage is sp if proven by the sp claimant that it was received as a gift or inheritance;
gift or inehritance
during marriage;
to overcome cp presumption, party must present proof that in making the loan, the lender intended to rely 'primarily' on his sp for repayment;
lender intent doctrine
Gudelj
loan proceeds were characterized as sp only when direct or cicumstantial evidence indicated lender relied solely on sp in offering the loan;
lender intent - 'sole' reliance
Grinius
where direct evidence of intent regarding a secured loan is not presented, court may infer lender intent and, thus, determine the character of the loan from examining the security;
secured loan
when loan is unsecured, there is a reaonable assumption that the lending party relies in large part on the general creditworthiness of the applicant.

spouse's general creditworthiness is a community asset;
unsecured loan
ex. credit cards
where the security is mixed, the court must characterize the loan proceeds as cp;
mixed security
Grinius
1. unreasonably restrict access to books 16403(b)

2.unreasonably restrict right to be furnished info under 16403(c)

3. eliminate duty of loyalty under 16404(b)

4. unreasonabley reduce duty of care 16404(c)

5. eliminate obligation of good faith adn fair dealing 16404(d)
partners cannot
corp code 16103
either spouse has the management and control of community personal property as the spouse has of separate estate of the spouse
fc 1100(a)
management and control
spouse may not make a gift of community personal property or dispose of community personal property for less than fair reasonable value without the written consent of the other spouse
fc 1100(b)
gift of cp- written consent needed
spouse may not sell, convey, or encumber community personal property used as family dwelling, or f&f of the home, without the written consent of the other spouse;
fc 1100(c)
sale encumber cp - written consent
primary management and control of a community business or community interest in a business. as a practical matter, it is sole management and control.
fc 1100(d)
sole management and control
community business
in the management and contorl of cp, the general rules governing fiduciary realtionships set fort in fc 721 appy - must provide all 'material facts and information.'
fc 1100(e)
fiduciary duty (undue influence) trumps presumption of title. Spouse must rebut 'undue
irmo delaney
fiduciary trumps title
1. knowing, intelligent & voluntary
2. PDD & I&E exchanged
3. waiver may affect set-aside rights;
fc 2105
waiver of fdd
must materially affect judgment
fc 2105
set aside judgment
no bifo without pdd
fc 2337
bifurcation condition
to permit him to use with impunity the community funds to improve his sp would be contructive faurd upon the wife.
wheeland v. rodgers
cp conrib to sp
constructive fraud
cp to other spouse sp - intended as a gift
cp to own sp - right of reimbursement

consent eliminates the right to reimbursement or apportionment;
Dunn and Wheeland
equitable remedies
he who consents to an act is not wronged by it
estate of la belle
civ code 3515
consent
when appellate court decisions conflict, the court exercising inferior jurisdiction must make a choice.

it must determine which is the bettwer reaoned and most like to do justice.
Auto Equity
noted the dichotomy between 1. the Moore line of cases giving a pro tanto interst regardless of consent of the non-owning spouse, and (wolfe, allen, and bono)
2. the line of cases that have always held that consent precluded reimbursement; (Dunn and Wheeland)
gowdy
consent not an issue
application of cp to improve ones sp requires reimbursement regardless of consent;

disregarded the gift presumption for improvements;
wolfe, allen, and Bono
consent is irrelevant
1. Dunn and Weeland - consent eliminates the right to reimbursement; presumed a gift to other spouse if cp used to improve sp of other spouse;
(supreme court case)
2. wolfe, allen, bono - consent irrelevant; right of reimbursement irregardless of consent; (appelate courts)
dichotomy of cases in
equitable apportionment and reimbursement
burden is on the party claiming a waiver of rigth to prove it by clear and convincing evidence;
waiver of right to reimbursement
burden
spousal consent to use cp for sp purposes is a waiver of equitable apportionment or reimbursement

constitute transmutation - must comply with MacDonald express declartion of change in character;
spoual consent is an
attempted tranmutation
no breach of fiduciary duty if full and complete disclosure and secures their consent;
corp code 15021
fiduciary duties of non marital business partners re consent
as related to equitable apportionament, actual fraud involves the intentional concealment of the use of cp funds for sp purposes;
actual fraud
no intent requirement;

breach of duty which gains an advantage to the person in fault by misleading another to his prejudice without fraudulent intent;

constructive fraud is a statutory violation therefore no notice of recission is required; civ code 1573
constructive fraud
1. restitution of funds used

2. pre-judgment interest (Bullis) civ code 3287(a) discretionary with the tier of fact; (Baker v. Pratt); if actual fraud, can get compounded interest;

3.. pro tanto interest awarded in lieu of calculation of interest on the cp used in sp;

whichever is greater between interest or pro tanto interest;
remedy for constructive fraud
all provisions of law applicable in civil actions apply to a proceeding in family code;
crc 5.21
civil law apply to family law;
fc 721(b)(3) and 1101(b) expressly mandate an accounting hwere cp is used without the consent of one spouse;
right to full accounting of cp funds
fc 721(b)(3) and 1101(b)
1. mortgage principal
2. improvements
3. carrying costs - interest, property tax, and insurance
4. pay for a businesss
right to reimbursement includes mortage paydown, improvements, and carrying costs;
apply the % appreciation from dom up to conversion date to cp (refi to joint tenants);\n
step
1. determine amou nt of each party's contribution tward purchase price of residence

2. calc amount of appreciation from purchase price to date of conversion;

3 calc percentage of purchase price represented by each parties contributio multiplied appreciation to percentage to obtain dollar figure;

4 add each party's contribution to his or her percentage of appreciation to arrive at each party's total separate property equity;

split any appreciation after date of conversion between the parties;
irmo rico
cp applied to sp then convert to cp (refi)
moore-marsden applies to improvements
irmo allen
cp is entitled to a pro tanto interest to the extnt that the improvements increase the value of the property.
wolfe, allen bono
cp has pro tanto interest in improvements
1. must increase value
2. delay apportionment until improvement
3. credit all pre-improvement appreciation to sp
4. sp gets all post dos appreciation
bono
1. childrens interest in stability and continuity in the custodial arrnagement;
2. distance
3. age of the children
4. childrens relationship with both parents
5. relationship between the parents including ability to communicate and cooperate effectively and willingness to put interest of the childrent above their individual interest
6. wishes of the child;
7. reasons for the proposed move
8. extent to which the parents currently are sharing custody;
la musga
factors to determine
modification of custody
in a move away case